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To find out if a debtor is able to set aside CP based on Section 5(1)(c) and Section 5(1)(d) of The Act & Rules

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asked on Jan 18, 2021 at 23:52
by  
edited on Jan 19, 2021 at 00:23
by   Wai Wai
I respect the Author of this forum, and that's why I created a new thread from a previous one, https://www.lawyerment.com/answers/questions/13863/bankruptcy-notice-notis-kebankrapan-creditors-petition-petisyen-pemiutang-in?g=2#tab-top

Hi Harapan Besar,

Thank you so much for shedding light on the debtor's current circumstances. 

2.   Based on your facts, you can rely on Section 5 (1)(c) of 
      The Act & Rules :
       " the act of bankruptcy on which the petition is 
        grounded has occurred within six months before
        the prsentation of the petition "
Debtor received BN via substituted service on 25 April 2019 via The Star newspaper. Debtor would like to bring to your attention that in the CP, it stated (kelakuan kebankrapan telah dilakukan pada 10 Mei 2019), and CP was stamped on 8 November 2019. If based on 10 May 2019, then CP was filed within 6 months after the Act of Bankruptcy.

However, I think bank X and its litigator have got the dates incorrectly, whether it's intentionally or unintentionally. My understanding is that debtor would have 7 days to response to the Bankruptcy Notice and failure to do so would result in an Act of Bankruptcy. But, 10 Mei 2019 is the 10th business day after 25 April 2019. It appears that they've extended the date and not the 7th day when the debtor had committed an Act of Bankruptcy. If it's listed on the 7 business day from 25 April 2019, then the filing of CP on 8 November 2019 would be invalid. My explanation as follows: The 7th day after 25 April 2019 (if based on business day) would be 7 May 2019. CP was filed on 8 November 2019. Therefore, CP was filed 6 months and 1 day. I believe it's considered invalid. Could debtor set aside the CP based on this reason?

3.   For Section 5 (1)(c) of The Act & Rules , the 
      following particulars are required :

      i. The date on which the Bankruptcy Notice (BN)
         was served on you; 

15 April 2019 via substituted service - the Star newspaper 

      ii. how was it served, by hand or advertisement
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Debtor never received BN and CP by hand. Bank's explaination was nobody at home. Therefore, BN and CP were served via substituted service. Debtor self-collected the CP at the litigator's office.

     iii.  The date on which the Creditor's petition was filed
It's dated 6 November 2019 in the CP application form, but it was stamped on 8 November 2019, and it has $150.00 word on the stamp too.

4.   For Section 5 (1)(d) of The Act & Rules :
      there must be documents to support your claim
      that you were out of Malaysia

Debtor still has got his old passport and visa. Debtor had not been to any countries since departed Malaysia in December 2014, and only return to Malaysia after nearly 5.5 years.

To bring to your attention, debtor only informed bank X about his country of residence and overseas mobile number after he was served with a BN via substituted service. Litigator attempted to serve BN and CP to the debtor's Malaysian address while he was still in overseas. Debtor is not sure whether by not updating bank X and National Registration Department (MyKad) about his then overseas residential address before the BN was filed would have any complications on his potential set aside CP claims. Debtor never updated his overseas address to NRD (MyKad).

5   You just need to set aside the CP.
Does debtor just humbly request the Judge to set aside the CP based on Section 5(1)(c) and/or Section 5(1)(d), and explained the exact reasons as what I've mentioned in this post?

6.  If you are not represented by lawyer, the 
     total cost incurred to set aside the CP
     is just a very small amount.
Debtor may consider to engage a litigator to take up his case but debtor wasn't sure if it's going to worth the legal cost or not, considering if he has a solid case to set aside the CP by himself? For your information, debtor owed bank X RM60,000 currently. And no ongoing interest were added since 2014. Debtor has a confirmation slip on this and he also has it confirmed by the creditor. Furthermore, he also referred to his previous bank statements since 2014 to ensure no ongoing interest is added.

I'm aware that you had been cost awarded a total of RM7,500 in three occasions. And I wondered how much debtor could claim for setting aside his CP?  

7.   Act fast to set aside the CP. 
Debtor would really like to act fast to set aside the CP. But, debtor thought he was meant to set aside the CP on the CP hearing date. Or what should debtor do instead?

Debtor has no assets and is currently unemployed.

THANK YOU SO MUCH FOR YOUR ASSISTANCE. 

Wai Wai
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answered on Jan 19, 2021 at 09:29
by  
edited Jan 19, 2021 at 12:19
by   Wai Wai
Copy & Paste from the previous thread
https://www.lawyerment.com/answers/questions/13863/bankruptcy-notice-notis-kebankrapan-creditors-petition-petisyen-pemiutang-in?g=3#tab-top

Hi Harapan Besar,

Yes, I've started a new thread. Thank you!

Hi Jeff,

Debtor's hearing at the end of the month is the same CP since November 2019. It took them over a year to serve the CP via substituted service. The records I have got is they attempted to deliver the CP in September 2020. And substituted service was served in December 2020.

Debtor submitted a proposal for instalment after BN substituted service was served. And the bank took a few months to finally approve debtor's proposal. However, their litigator filed the CP just a few days before debtor made his first instalment without his knowledge. Debtor wouldn't have made any payment if he knew they've filed a CP prior to his first instalment.
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answered on Jan 19, 2021 at 09:58
by  
edited Jan 19, 2021 at 10:02
by   harapan besar
 Hi Wai Wai,

 the relevant law :

 1. The date the BN is considered served on debtor :
     Date A, that is 7 days from the date of the advertisement.

  2. The date of the Act of Bankruptcy is Date B, whidh is 7 days 
      from the Date A .

  3. Date C is the latest date the CP must be filed , which  is 
      within 6 months Date B .

  4 If the CP is filed after Date C, then the Act of Bankruptcy
     is no more available for the CP.

  
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answered on Jan 19, 2021 at 10:05
by  
edited Jan 19, 2021 at 10:13
by   Wai Wai
Hi Harapan Besar,

May I please know 7 days referring to 7 calendar days or business days?

The BN was advertised on the Star newspaper on 25 April 2019. CP was filed at the High Court on 8 November 2019.

If business day was applied, then according to my calculation, the Act of Bankruptcy fell on 7 May 2019. The submission of CP application to the Court on 8 November 2019 would have been 6 months and 1 day from the Act of Bankruptcy. 

Once again, thank you very much!

Wai Wai
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answered on Jan 19, 2021 at 10:08
by  
Hi Wai Wai,

Based on your statement :

 v  iii.  The date on which the Creditor's petition was filed
It's dated 6 November 2019 in the CP application form, but it was stamped on 8 November 2019, and it has $150.00 word on the stamp too.

My reply:
The CP is filed on 8.11.2019
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answered on Jan 19, 2021 at 10:12
by  
edited Jan 19, 2021 at 10:12
by   Wai Wai
Hi Harapan Besar,

Yes, It's definitely submitted and accepted by the High Court on 8 November 2019. The date is listed under CATATAN and it has the High Court stamp on it.
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answered on Jan 19, 2021 at 11:04
by  
Hi Wai Wai,

 Based on the fact provided by you, the CP 
 is already filed out of time.
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answered on Jan 19, 2021 at 11:22
by  
edited Jan 19, 2021 at 11:24
by   harapan besar
 Hi Wai Wai,

 my reply :

 1. it is based on calendar day. if the last calendar
    day is a public holiday. then the last day can
    be extended to another one day

2. Court only accept sworn statement as evidence.
    In this case, it must be affidavit evidence.
    It has to be done formally by filing a Saman
    Dalam Kamar supported by Affidavit.

    
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answered on Jan 19, 2021 at 12:08
by  
edited Jan 19, 2021 at 14:28
by   Wai Wai
Hi Harapan Besar, 

It seems to me that debtor would be able to set aside the CP based on Section 5(1)(c) of the Act & Rules.

That's great news!

May I please know how to file a Saman Dalam Kamar supported by Affidavit? 

Under the CATATAN, debtor's name and IC No. hendaklah mengambil perhatian bahawa sekiranya kamu bercadang hendak mempertikaikan kebenaran mana-mana penyataan yang terkandung dalam permohonan itu, kamu mestilah memfailkan suatu notis dengan Pendaftar Mahkamah ini menunjukkan alasan yang kamu bercadang hendak mempertikaikannya, dan menghantar dengan pos suatu salinan notis itu kepada pihak yang memohon tiga (3) hari sebelum tarikh yang ditetapkan bagi pendengarannya.

In the CP application, the litigator marked the debtor had committed an Act of Bankruptcy on 10 May 2019. 

Does the debtor explain that the date of an Act of Bankruptcy committed was incorrectly stated in the CP (EXCEEDED 7-day period from 25 April 2019 to respond to the bankruptcy notice and in the absence of opposition or setting aside), hence, the CP filed on 8 November 2019 has filed out of time due to it was presented after 6 months from the Act of Bankruptcy in the Saman Dalam Kamar.

And may I please know how much the debtor could costs claim with and without a litigator to set aside the CP and/or BN?

Thank you!

Wai Wai
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answered on Jan 19, 2021 at 14:59
by  
edited Jan 19, 2021 at 15:02
by   harapan besar
Hi Wai Wai,

1. If info provided by you is correct, then our 
    computation of the act of bankruptcy 
    and the six month period for filing of 
    CP is correct.

2. Keep a full page copy of the newspaper
    with the advertisement, then reduced 
    its size to either A3 or A4 as exhibit.

3. Show the computation of dates in your 
    affidavit.

4. Yes, you have to file notis bertindak diri
    and notis membantah. for detail please
    read the relevant issues in the forum.

5.  i managed to set aside the CP in the year
     2012 on the same ground, and i was 
     awarded RM1,500. Nowadays, at Penolong 
     Kanan Pendaftar level, it is about RM500, high court 
     level about RM3,000.

6.  Reminder, i do not have time to give you 
     full support and guidance.  So, do not
     expect much from me.

 
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answered on Jan 19, 2021 at 15:36
by  
edited Jan 19, 2021 at 16:17
by   Wai Wai
Hi Harapan Besar,

Debtor has a full page copy of the Star newspaper with the advertisement, dated on 25 April 2019.

Debtor is considering to have a litigator to take up his case and to submit the Saman Dalam Kamar with affidavit.

I wondered if debtor could costs claim RM5000 for setting aside the CP with the aid of a litigator in representing his case?

Thank you so much for your assistance and time!

You've helped the debtor with your own free will and debtor will forever be indebted to you. You're awesome!

Wai Wai
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